You Can Outsource the Work. You Cannot Outsource ADA Responsibility.
Government agencies and organizations rely on outside vendors every day. They hire companies to build websites, process applications, create documents, manage payment systems, provide interpreters, design facilities, and operate public programs. The agency remains responsible for accessibility. It is not removed, even when a third party manages the work.
The public still experiences the service as the organization’s service. The law largely views it the same way.
What the ADA Says About Contracted Services
The Americans with Disabilities Act (ADA) leaves little room for an organization to blame its contractor.
Under Title II, state and local governments may not discriminate in their services, programs, or activities. The regulations specifically prohibit a public entity from denying equal access either directly or through a “contractual, licensing, or other arrangement.” They also prohibit public entities from using administrative methods, including those carried out through contractors, that result in discrimination. These requirements appear in 28 C.F.R. § 35.130.
Congress and the Department of Justice (DOJ) anticipated that public entities would use private companies to perform government functions. The regulations prevent a public entity from accomplishing through a contract what it could not legally do on its own.
The same principle appears under Title III. Businesses and nonprofits that qualify as places of public accommodation may not provide unequal goods, services, facilities, privileges, or advantages directly or through contractual arrangements. The Department of Justice explains that this language prevents a public accommodation from indirectly doing what the law prohibits it from doing directly. See 28 C.F.R. §§ 36.202 and 36.204.
Title I also addresses contractual relationships. An employer may violate the ADA by participating in a contractual arrangement that subjects a qualified applicant or employee with a disability to discrimination. Outsourcing recruiting, benefits administration, testing, or any other employment function does not authorize an employer to disregard its own ADA obligations.
The Difference Between Delegating Work and Transferring Responsibility
An organization can hire a vendor with specialized knowledge. In many situations, that is the responsible choice. Accessibility needs to be addressed and integrated into the process during the contract phase.
The contract can require the vendor to meet accessibility standards, correct defects, maintain records, respond within established timeframes, and reimburse the organization for certain losses. Those terms help allocate responsibility between the organization and the vendor.
They do not necessarily change who a person with a disability can hold accountable.
The Department of Justice uses the landlord-tenant relationship to explain this distinction. A lease may assign responsibility for removing barriers to either the landlord or the tenant. However, that allocation only governs the relationship between those parties. According to the DOJ’s Title III Technical Assistance Manual, both may remain liable to the person who encountered the barrier.
The same practical distinction applies to many vendor relationships: a contract may give an organization a claim against the vendor, but it does not automatically provide a defense to an ADA complaint.
Digital Accessibility Regulations Makes This Even Clearer
The Title II web and mobile accessibility regulations directly address third-party content.
Under 28 C.F.R. § 35.200, public entities must ensure that the web content and mobile applications they provide or make available, directly or through contractual, licensing, or other arrangements, are accessible.
The DOJ gives several examples, including third-party scheduling tools, payment systems, maps, website templates and online application platforms. When a vendor creates or posts content on behalf of a public entity, the entity remains responsible for accessibility.
The DOJ states the point plainly in its discussion of the rule: a public entity may not delegate away its ADA obligations.
There is a limited exception for certain content posted independently by unaffiliated third parties. A comment left by a member of the public, for example, is different from a form, document, or platform supplied under contract for the public entity’s use. Calling a contractor “third party” does not place contracted content within that exception.
If a housing authority hires a vendor to accept public housing applications, the application system must provide equal access. Cities using an outside payment portal must ensure residents with disabilities can use it. If an agency hires a company to produce public documents, the agency must still ensure that people with disabilities receive the information in an accessible and timely manner.
What the Courts Have Said
Courts have applied this principle in several different settings.
Armstrong v. Schwarzenegger
California housed some state prisoners and parolees in county jails through contractual arrangements. The state argued that it should not be responsible for ADA violations occurring in facilities outside its immediate control.
The Ninth Circuit rejected that position in Armstrong v. Schwarzenegger. The state could not avoid its federal obligations by contracting with another party to perform its functions. The litigation resulted in continuing court oversight and orders requiring the state to develop systems for accountability and compliance.
Delegation did not end the state’s responsibility. It increased the need for oversight.
Castle v. Eurofresh, Inc.
Arizona assigned an incarcerated person with a disability to work for a private company through a state prison work program. When he requested a modification, the private company refused it. The state argued that it lacked authority over the company’s job assignments and therefore should not be held liable.
In Castle v. Eurofresh, Inc., the Ninth Circuit reversed the judgment in favor of the state defendants. The court held that the state could be liable for disability discrimination committed by its contractor.
The result is worth noting: the court dismissed the claims against the private company under the particular federal laws asserted, but it allowed the claims against the state to continue. The contractor’s involvement did not leave the individual without a responsible public entity.
Disabled Rights Action Committee v. Las Vegas Events
Private organizations operated the National Finals Rodeo at a publicly owned arena. People with disabilities alleged inaccessible seating, unequal ticket prices, and other barriers. The private organizations argued, in part, that they did not own the facility.
The Ninth Circuit allowed the Title III case to proceed in Disabled Rights Action Committee v. Las Vegas Events. The court explained that covered private entities cannot avoid Title III obligations by contracting to provide services at a venue they do not own.
Ownership of the arena was not the only question. The organizations’ role in operating the event also mattered.
City of Los Angeles v. AECOM Services
Two people with disabilities sued Los Angeles over accessibility problems at its FlyAway bus facility. The city had hired contractors to design and construct the facility, so it filed claims against those contractors for breach of contract and contribution.
In City of Los Angeles v. AECOM Services, the Ninth Circuit allowed the city’s state-law claims against the contractors to proceed.
That did not remove the city from the original accessibility case. It meant the city could attempt to recover certain losses from the companies whose work allegedly caused the violations. The public-facing ADA obligation and the private contractual dispute remained separate issues.
Equal Rights Center v. Niles Bolton Associates
Organizations should not assume that an indemnification clause will always shift all ADA liability to a vendor.
In Equal Rights Center v. Niles Bolton Associates, a developer sought to transfer its losses from accessibility violations to an architectural firm. The Fourth Circuit rejected claims that effectively sought complete indemnification. The court reasoned that allowing an owner to fully insulate itself would reduce its incentive to ensure compliance with federal disability law.
These cases reached different conclusions about what one party could recover from another. They agree on the more important point: the organization cannot treat a vendor contract as a substitute for its own compliance.
What Happens With An Accessibility Failure?
When an accessibility failure reaches the complaint or enforcement stage, “the vendor did it” rarely resolves the problem.
Depending on the law, the facts, and the court involved, the organization may face:
- An order to correct the inaccessible service, facility, document, website, or application
- Attorney’s fees and litigation expenses
- Compensatory damages when the legal requirements for damages have been met
- Civil penalties or other relief in a Department of Justice enforcement action
- Required policy changes, employee training, monitoring and reporting
- The cost of replacing or repairing a platform that should have been accessible when purchased
- A separate contract dispute with the vendor
- Loss of public trust
The organization may pay twice: once for the inaccessible product and again to correct it. It may also spend significant time arguing with the vendor while the person with a disability continues to wait for access.
That delay creates another problem. Under the ADA, accessibility must be meaningful and timely. Providing an accessible document after the meeting, an interpreter after the appointment, or access to an application after the deadline does not provide an equal opportunity to participate or access.
Procurement Must Include Oversight
Organizations should place clear accessibility requirements in every relevant contract, but the contract is only the beginning.
The organization must know what standard applies, describe it accurately, require evidence of conformance, and verify the finished work. It also needs a process to report barriers and correct them quickly. A vendor’s statement that a product is “ADA compliant” does not prove that a person with a disability can use it.
An automated report does not settle the question either. Automated tools can identify some accessibility problems. They cannot fully evaluate usability, context, reading order, meaningful alternative text, effective communication, or every interaction a person may have with a document or digital platform.
Someone within the organization must retain ownership of the process. That person may be an ADA Coordinator, accessibility professional, compliance officer, or another employee with the authority and knowledge to act.
Accountability Stays With the Service
A person with a disability should not have to identify every vendor involved in a service before requesting equal access. They should not have to determine who created a form, selected a platform, designed an entrance or failed to order an accessible document.
They came to the organization for a service. The organization chose how to provide it.
Hiring qualified vendors can strengthen an accessibility program. Good contracts can clarify expectations and provide remedies when a vendor fails. Neither replaces the organization’s duty to understand what it purchased, verify that it works, and respond when it does not.
You can delegate the task. Carefully written contracts can help you share responsibility. You may even have a valid claim against a vendor that failed to deliver what it promised.
What you cannot do is delegate away the civil rights of the people you serve.
This article provides general educational information and does not constitute legal advice. ADA coverage, available remedies, and contractual rights depend on the facts, the applicable title of the ADA, and the jurisdiction involved.
